Bombay High Court
Ayub Babu Irani vs The State Of Maharashtra on 8 August, 2017
Bench: A.M. Badar
207-APPEAL-44-2012-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.44 OF 2012
AYUB BABU IRANI )...APPELLANT
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
Ms.Nasreen Ayubi, Appointed Advocate for the Appellant.
Ms.Pallavi N. Dabholkar, APP for the Respondent - State.
CORAM : A. M. BADAR, J.
DATE : 7th & 8th AUGUST 2017
ORAL JUDGMENT :
1 By this appeal, the appellant / accused no.1 is
challenging the judgment and order dated 28 th November 2011
passed by the learned Additional Sessions Judge, Pune, in Sessions
Case No.410 of 2010 thereby convicting him of offences
punishable under Sections 376, 366A and 506(2) of the Indian
Penal Code (IPC) and sentencing him rigorous imprisonment for 7
years, 1 year and 1 year respectively, on each count. Apart from
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this, for the offence punishable under Section 366A of the IPC, the
appellant / accused no.1 is also sentenced to pay fine of
Rs.1,000/- and in default, to undergo further rigorous
imprisonment for 2 years. Co-accused i.e. accused no.2 Rupesh
Mhaske, whose appeal is not before this court, is also found guilty
of the offence punishable under Section 366A of the IPC and he is
sentenced to suffer rigorous imprisonment for 1 year, apart from
direction to pay fine of Rs.5,000/- and in default, to undergo
further rigorous imprisonment for 1 month. Accused no.3 Imran
Jafari came to be acquitted by the impugned judgment and order.
For the sake of convenience, the appellant / accused hereinafter
be referred to in his original capacity as accused no.1.
2 Facts leading to the institution of the present appeal
can be summarized thus :
(a) According to the prosecution case, the prosecutrix, who is
examined as PW1 is a minor daughter of PW3 Mangal. They
were residing at Patel Estate Slum at Pune. The prosecutrix was
working with a caterer and was having a boyfriend named Rahul
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Borade (PW8). The incident in question, according to the
prosecution case, took place in night hours on 11th February 2010.
In the evening of that day, the prosecutrix and her friend PW8
Rahul Borade, indulged in chitchatting in the cycle parking area of
Shivaji Nagar Railway Station at Pune. At that time, reportedly,
all accused persons were staring at the prosecutrix. At about 8.30
p.m., the prosecutrix left company of PW8 Rahul Borade and
started returning to her house. As her footwear was broken, she
was unable to walk properly. One of the accused persons then
came towards her and offered to give fevicol for mending her
footwear. The prosecutrix accompanied him towards the direction
of Khadki Railway Station. During that journey, at public water
tap, she attempted to drink water. At that time, another accused
namely accused no.2 Rupesh Mhaske came. These both accused
persons accompanied by the appellant /accused no.1 Ayub Irani
dragged her towards Maruti Service Centre and while accused
no.2 Rupesh Mhaske and accused no.3 Imran Jafari waited nearby,
accused no.1 Ayub Irani committed rape on her, in the secluded
area behind Shivaji Nagar S.T. stand. Apprehending that other
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accused persons may commit rape on her, the prosecutrix ran
away in nude condition.
(b) According to the prosecution case, PW2 Rahul Kamble and
PW6 Sandeep Raut helped the prosecutrix and their family
members provided clothes to her. Friends of the prosecutrix were
then contacted telephonically, so also her parents. The prosecutrix
was then taken to Police Station Shivaji Nagar, where her report
(Exhibit 70) came to be recorded by PW11 A.P.I. Milind Chavan.
She was then sent to Sassoon Hospital where PW9 Dr.Archana
Sankpal, Gynecologist, conducted her medical examination. The
prosecutrix was also subjected to the ossification test, the report of
which is at Exhibit 6.
(c) During course of investigation, the spot came to be inspected
on 12th February 2010. Articles found on the spot of the incident
including clothes of the prosecutrix came to be seized vide seizure
panchnama Exhibit 79. Statement of witness came to be
recorded. Routine investigation followed. Seized articles were
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sent for chemical analysis and after completion of investigation,
all three accused persons including appellant / accused no.1 came
to be charge-sheeted. Charge for the offence punishable under
Sections 376, 366A read with 34 and 506(2) read with 34 of the
IPC came to be framed and explained to the appellant / accused
no.1 by the learned trial court. Charge for the offence punishable
under Section 366A read with 34 of the IPC and Section 506(2)
read with 34 of the IPC came to be framed and explained to other
accused persons also.
(d) As accused persons abjured the guilt, the prosecution has
examined in all eleven witnesses to bring home the guilt to
accused persons. The prosecutrix came to be examined as PW1.
The report lodged by her is at Exhibit 70. PW2 Rahul Kamble and
PW6 Sandeep Raut are stated to be the persons, who had
witnessed the prosecutrix in nude condition and who helped her
in getting clothes. Mangal - wife of Mohan, is mother of the
prosecutrix and she is examined as PW3. In order to prove age of
the prosecutrix, the prosecution has examined Jayashree Lembhe,
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Head Mistress of Dr.Babasaheb Ambedkar Primary School, as
PW4. Sanjay Divekar, a person who allegedly saw accused no.1
Ayub Irani at Ration shop by the side of Shivaji Nagar Railway
Station at the time of the incident is examined as PW5. PW7
Rajesh Shinde is a panch witness to the spot panchnama which is
at Exhibit 79. PW8 Rahul Borade is the boyfriend of the victim
girl. He is declared hostile by the prosecution. PW9 Dr.Archana
Sankpal is the Medical Officer of Sassoon Hospital, who examined
the prosecutrix soon after the incident. PW10 P.I. Ms.Maya Bankar
is the Investigating Officer where as PW11 Milind Chavan A.P.I, is
the Police Officer who recorded the First Information Report (FIR)
and who send the prosecutrix for medical examination.
(e) The defence of the appellant / accused no.1 Ayub Irani, as
seen from the line of the cross-examination of prosecution
witnesses is that of total denial. According to him, he had seen
the prosecutrix indulged in sexual intercourse with her boyfriend
PW8 Rahul Borade and therefore, he reported the matter to
police, and therefore, he is falsely implicated in the crime in
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question.
(f) After hearing the parties, the learned trial court by the
impugned judgment and order was pleased to convict the
appellant / accused no.1, as indicated in the opening paragraph
of this judgment.
3 I have heard Ms.Nasreen Ayubi, the learned advocate
appearing for the appellant / accused. By taking me through the
evidence of PW1 i.e. the prosecutrix, as well as through the
evidence of PW9 Dr.Archana Sankpal, the learned advocate
vehemently argued that the prosecutrix is not a witness of truth as
on the first occasion, she had reported to the Medical Officer that
she was kidnapped by fifteen unknown persons and was taken to
an unknown place where she was raped by one Ayub. The
learned advocate further argued that cross-examination of the
prosecutrix, so also the history narrated by her to PW9
Dr.Archana Sankpal, shows that she was habitual to sexual
intercourse. It is further argued that as per version of the
prosecutrix, she ran away from the spot in a naked condition and
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subsequently she was provided with clothes by PW2 Rahul
Kamble and PW6 Sandeep Raut. However, those clothes were not
seized by police. According to the learned advocate appearing for
the appellant / accused no.1, the spot of the incident, according
to the prosecution case, is a public place and it is improbable that
accused persons or any of them, would have been in a position to
kidnap her for committing rape. Though according to the
prosecution case, the prosecutrix was raped at a rough surface,
she had not suffered any external injury and therefore, the
appellant / accused no.1 is entitled for benefit of doubt.
4 I have also heard the learned APP appearing for the
State. She supported the impugned judgment and order.
5 Now let us examine whether the appellant / accused is
proved to have committed offences punishable under Sections
376, 366A and 506(2) of the IPC, as held by the learned trial
court, by re-appreciating the evidence adduced by the prosecution
on record. One may argue that the prosecutrix was a consenting
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party to the alleged act and therefore, conviction of the
appellant / accused for the offence punishable under Section 376 of the IPC
cannot be sustained. However, according to the prosecution case, the
prosecutrix was minor at the time of commission of the alleged offence, she
being below 16 years of age at the relevant time. Let us, therefore, at the
outset, ascertain whether the prosecutrix was a minor female child being
below 16 years of age, at the time of commission of alleged offence. The
offence allegedly took place on 11th February 2010 near Shivaji Nagar
Railway Station and Shivaji Nagar Bus Stand of Pune. So far as her age is
concerned, it has been elicited from cross-examination of PW1 i.e. the
prosecutrix that prior to the incident, she was studying in Dr.Babasaheb
Ambedkar Primary School, a Municipal School of Pune. Her date of birth
is also elicited from her cross-examination by the defence and in paragraph
15 of her cross-examination it is brought on record that date of birth of
prosecutrix is 19th November 1995. PW3 Mangal is mother of the
prosecutrix. She has deposed the date of birth of the prosecutrix as 19th
November 1995. Here again, during cross-examination, the defence has
brought on record that the prosecutrix was taking education in
Dr.Babasaheb Ambedkar Primary School in Pune, where her birth certificate
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issued by the Municipal Corporation of Pune, was submitted at the time of
her admission. This is what the oral evidence regarding the age of date of
birth of the prosecurtrix / PW1 is. However, it is well settled that for
determining age of a person, oral evidence is hardly of any assistance. At
this juncture, it needs to be noted that as seen from her evidence, the
prosecutrix / PW1 is having rustic background and she used to work as
labourer with a caterer. Her mother PW3 Mangal is also labourer by
occupation and they both were residing in the slum area of Shivaji Nagar,
Pune. Therefore, no overbearing importance can be given to the fact that
the prosecutrix / PW1 and her mother PW3 Mangal has stated incorrect
date of birth of the prosecutrix / PW1 as 19 th November 1995. The
prosecution is also relying on documentary evidence in order to prove age
as well as date of birth of the prosecutrix / PW1. When compared with
contemporaneous documentary evidence, it is seen that the prosecutrix was
born in the year 1995 itself and she as well as her mother had just
incorrectly stated the month of her birth. I am of the view that discrepancy
regarding incorrect month of birth stated by the prosecutrix and her mother
PW3 Mangal is immaterial.
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6 In order to prove age of the prosecutrix, the prosecution has
examined PW4 Jayashree Lembhe, Head Mistress of Dr.Babasaheb
Ambedkar Primary School, Pune, run by the Pune Municipal Corporation.
It is in her evidence that the prosecutrix was admitted in the school on 19th
June 2001 and at the time of her admission, her parents had produced her
date of birth certificate issued by Sassoon Hospital, Pune. PW4 Jayashree
Lembhe had brought General Register of the school where entry in respect
of date of birth of the prosecutrix was taken on the basis of the birth
certificate issued by Sassoon Hospital. Not only that, evidence of PW4
Jayashree Lembhe shows that she had also brought original date of birth
certificate issued by the Sassoon Hospital, Pune, while deposing before the
court. As per version of PW4 Jayashree Lembhe, recorded date of birth of
the prosecutrix is 19th October 1995 and this witness has duly proved the
School Leaving Certificate of the prosecutrix issued by her school reflecting
the date of birth of the prosecutrix as 19 th October 1995. This certificate is
at Exhibit 75. At this juncture, it is apposite to note that Section 35 of the
Evidence Act deals with relevancy of entry in public record made in
performance of duty. An entry in public record stating a fact in issue or
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relevant fact and made by a public servant in discharge of his official duty
is a relevant fact. This section is based upon the principle that the law
reposes confidence in public officers entrusted with public duties. In the
case in hand, evidence of PW4 Jayashree Lembhe, Head Mistress, shows
that entry of date of birth of the prosecutrix was made in the official record
maintained by the Municipal School on the basis of birth certificate issued
by Sassoon Hospital, Pune, a government hospital. As such, this
documentary evidence corroborates version of the prosecutrix so also that
of her mother PW3 Mangal regarding age of the prosecutrix, and therefore,
I hold that prosecution has proved that the date of birth of the prosecutrix
is 19th October 1995. The incident in question allegedly took place on 11 th
February 2010 and as such, on the date of incident, the prosecutrix was
below 15 years of age. As such, her consent, if any, becomes irrelevant as
she had not attained the consenting age.
7 Now let us examine whether it is proved by the prosecution
that the appellant / accused has committed sexual intercourse with the
prosecutrix falling under any of the categories enumerated in Section 375
of the IPC. On this aspect, fate of the prosecution case to a large extent
hinges on the testimony of the prosecutrix i.e. PW1. It is in her evidence
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that on 11th February 2010, at about 7.00 p.m., she had been to the cycle
stand area of Shivaji Nagar Railway Station and had indulged in
chitchatting with her friend PW8 Rahul Borade. As per her
version, the appellant / accused along with his to friends i.e. co-
accused was also present there and they were watching her. She
further deposed that at about 8.00 - 8.30 p.m. she started
returning back to her home. But during that journey her footwear
was broken and co-accused Imran offered to give fevicol for
mending her footwear and therefore she accompanied him. The
prosecutrix deposed that when she bent down to drink water from
the water tap, during that journey, accused no.2 Rupesh, so also
appellant / accused no.1 Ayub came. The appellant / accused
caught hold of her hair and he along with co-accused dragged her
below the tree. While other two accused persons were standing at
some distance, the appellant / accused denuded her and
committed rape on her. Thereafter, the prosecutrix was
threatened by him. In a frightened condition, she started running
away in naked condition. As per her version, two persons then
helped her. She was taken to police station, where she lodged the
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FIR, Exhibit 70.
8 In her cross-examination, it is brought on record by
the defence that she was medically examined by PW9 Dr.Archana
Sankpal and at that time, she had reported to PW9 Dr.Archana
Sankpal that she was kidnapped by fifteen unknown persons. The
prosecutrix further stated in her cross-examination that out of
those fifteen unknown persons, nobody is present in the court. It
is further elicited from her cross-examination that she had
disclosed to PW9 Dr.Archana Sankpal that she had, on earlier
occasions, sexual intercourse with persons named Rahul and
Pappy. The prosecutrix denied the suggestion that she was
indulging in sexual intercourse with her friend PW8 Rahul Borade
at the time of the incident, and then accused persons saw and
reported the fact to police and therefore, she had falsely
implicated them. With this material on record, the defence is
attempting to demonstrate that the prosecutrix is habitual to
sexual intercourse and she had come up with a different version
before the Medical Officer and the benefit of this fact goes to the
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appellant / accused.
9 In order to consider the defence that the prosecutrix
had disclosed to the Medical Office that she was kidnapped by
fifteen unknown persons, none of which is the accused before the
court, one will have to consider the evidence adduced by the
prosecution in entirety. The prosecutrix, prior to her medical
examination by PW9 Dr.Archana Sankpal, had been to Shivaji
Nagar Police Station where she lodged her report Exhibit 70. This
report is duly proved by her in her evidence. Her substantive
evidence is duly corroborating this FIR Exhibit 70 wherein she has
stated that she was dragged by accused persons including the
appellant / accused and thereafter, the appellant / accused had
committed rape on her.
10 PW9 Dr.Archana Sankpal subsequently conducted
medical examination of the prosecutrix. As per version of PW9
Dr.Archana Sankpal, the prosecutrix had given the history that
fifteen unknown persons took her to unknown place at Shivaji
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Nagar and then a person named Ayub had committed rape on her.
The same history is found to be incorporated in report of medical
examination of the prosecutrix at Exhibit 88 proved by PW9
Dr.Archana Sankpal. This contemporaneous document coupled
with evidence of PW9 Dr.Archana Sankpal goes to show that
according to the prosecutrix she was kidnapped by fifteen
unknown persons and raped by a person named Ayub. It is
interesting to note that the appellant / accused is Ayub Irani.
Thus, the prosecutrix is consistent in stating the name of the
appellant / accused as a person who had committed rape on her.
Only exaggeration which she made before the Medical Officer is
that she was kidnapped by fifteen unknown persons. The
question will be whether on this count, the entire version of the
prosecutrix needs to be jettison as she had improved her version
before the Medical Officer who had conducted medical
examination. It is an experience in life that witnesses go on
adding embellishments to their version, perhaps with a fear that
otherwise their testimony might be rejected by the court.
However, it is duty of the court to separate nuggets of truth from
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the version of the witness by discarding the embellishments. It is
well settled that improvements or variations made by witnesses in
their earlier and later versions alone are not sufficient to reject
their testimony. The court has duty to sift truth from falsehood. If
there is general agreement and consistency with regard to the
substratum of the prosecution case, then collateral discrepancies
are not material. Therefore, one will have to go to other evidence
of the prosecution in order to determine whether evidence of the
prosecutrix is gaining corroboration in material particulars even
though she has deposed that she had disclosed to the Medical
Officer that she was kidnapped by fifteen unknown persons.
11 Evidence of the prosecutrix is to the effect that after
she was subjected to rape, in a frightened condition, she started
running from accused persons in nude condition. She has further
stated that then two persons helped her. The prosecution has
examined those two persons who are PW2 Rahul Kamble and
PW6 Sandeep Raut. Their version is consistent and corroborating
the version of each other. Both these witnesses deposed that in
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the night hours of 11th February 2010, they heard shouts of a girl
"brother save me." Both these witnesses further deposed that then
one girl came towards them in a nude condition. She was then
provided with clothes by them. Additionally, PW2 Rahul has
deposed that upon being asked, the said girl disclosed that when
she was proceeding from Shivaji Nagar Railway Station, her
footwear broke and thereafter three persons apprehended her.
Evidence of both these witnesses show that then help of police
was sought and acquaintances of that girl were called and the said
girl was sent to police station. There is nothing in cross-
examination of both these witnesses to doubt their version.
Evidence of both these witnesses establishes that soon after the
incident, the prosecutrix approached both of them for help in
nude condition. Version of both these witnesses as such, is
corroborating the testimony of the victim girl in material
particulars. Her former statement made soon after the incident
and heard by PW2 Rahul does not show that she was kidnapped
by fifteen persons, as alleged. Similarly, the FIR lodged by her
with promptitude does not contain the theory that she was
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kidnapped by fifteen unknown persons. Thus, there is general
agreement and consistency with regard to the substantive
evidence of the prosecutrix that she was taken to a secluded place
where she was raped by the appellant / accused. As such, the
history given by her to the Medical Officer to the effect that she
she was kidnapped by fifteen unknown persons needs to be
discarded in order to sift truth from the falsehood.
12 Now let us examine whether version of the
prosecutrix, who is habitual to sexual intercourse, as seen from
her evidence, is corroborated by the medical evidence on record.
The prosecutrix may be habitual to sexual intercourse but she had
not attained the consenting age and therefore, sexual intercourse
with her amounts to rape, as her consent, if any, is immaterial.
PW9 Dr.Archana Sankpal, a gynecologist, working with Sassoon
Hospital, in her evidence has deposed that she conducted medical
examination on the prosecutrix at about 9.00 am. of 12 th February
2010. The incident took place in night hours of 11 th February
2010. As such, the medical examination of the prosecutrix was
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conducted with promptitude. Evidence of PW9 Dr.Archana
Sankpal corroborated by contemporaneous report of medical
examination at Exhibit 88 reveals that upon medical examination
of the prosecutrix it was seen that the prosecutrix had suffered
blunt injury of size ½ cm x 4 cm just above left eyebrow and small
superficial injury just below left eyebrow. The Medical Officer also
found linear superficial skin abrasion on lower back of the
prosecutrix and it was of recent origin. That linear superficial skin
abrasion was of size 5 x ½ cm. Apart from this, PW9 Dr.Archana
Sankpal further deposed that though hymen of the prosecutrix
was having multiple old tear, she noticed recent tear of hymen of
1 cm on the posterior hymnal ring 1 cm in length and 2 cm in
depth in mid-line. The Medical Officer further noticed occasional
oozing from this mucosa tear. The Medical Officer further
noticed that there was posterior Fanchette in the mid-line ½
cm with raw margins. Perineum and inguinal area of the
prosecutrix was noticed to be stained with dark colored
dried blood. With these injuries, the Medical Officer opined
that the prosecutrix was subjected to forceful penetrative
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sexual intercourse recently. Thus, this medical evidence shows
that there were external injuries on person of the victim, so also
the victim had suffered internal injuries demonstrating forceful
penetrative sexual intercourse on her. This medical evidence on
record fully corroborates version of the prosecutrix so far as
offence of rape on her is concerned.
13 The prosecutrix had shown the spot of incident to the
police on 12th February 2010 itself. PW7 Rajesh Shinde is panch
witness to the spot panchnama which was conducted in his
presence by PW10 P.I. Maya Bankar. Evidence of PW7 Rajesh
Shinde and PW10 Maya Bankar shows that the spot of the
incident was at a secluded place between Shivaji Nagar Railway
Station and Shivaji Nagar Bus Stop. During spot inspection, the
Investigating Officer found blood stained clothes, blood stained
earth as well as blood stained stones. Similarly, condoms were
also found on the spot of the incident. Evidence of panch witness
as well as that of PW10 P.I. Maya Bankar shows that articles found
on the spot came to be seized by preparing spot panchnama
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Exhibit 79. Panch witness PW7 Rajesh deposed that articles were
sealed by police. Exhibit 80 - sketch map of the spot of the
incident is also proved by panch witness PW7 Rajesh.
14 Evidence of the Investigating Officer PW10 P.I. Maya
Bankar shows that seized articles were sent for chemical analysis.
Report of the Chemical Analyses at Exhibit 61 shows that blood of
the prosecutrix is that of "B" group. Similarly, blood group of the
appellant / accused, as seen from Report Exhibit 60 is of "B"
group. C.A. Report at Exhibit 57 shows that blood of "B" group
was found on seized articles, stones as well as clothes of the
prosecutrix seized from the spot of the incident. Kurta of the
prosecutrix was having stains of semen of "B" group. Thus,
forensic evidence also corroborates version of the prosecutrix that
she was subjected to rape by the appellant / accused. The
argument that clothes supplied to the prosecutrix subsequently by
PW2 Rahul and PW6 Sandeep were not seized by the
Investigating Officer for subjecting them to chemical analysis, is
wholly unmerited because what is required is proof beyond
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reasonable doubt and not the proof of mathematical precision.
15 Evidence of the prosecutrix is further gaining
corroboration from evidence of PW5 Sanjay Divekar, who had
seen the appellant / accused near Shivaji Nagar Railway Station
soon before the incident. Though this witness is declared hostile,
it is well settled that, that part of the evidence of the hostile
witness which supports the prosecution and is found to be
trustworthy can be accepted.
16 Thus, evidence on record shows that the appellant /
accused had procured the minor prosecutrix by dragging her to a
secluded place and thereafter committed sexual intercourse by
criminally intimidating her.
17 In the result, no infirmity can be found in the
impugned judgment and order of conviction of the appellant /
accused. Appropriate sentence is imposed by the learned trial
court. As such, the appeal is devoid of merits. The same is,
therefore, dismissed.
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(A. M. BADAR, J.)
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